Marijuana anyone? The ins and outs of employee drug testing

Employers have long struggled with the balance between an employee’s responsibilities at work and their right to a life outside of work. This has often given rise to the question of whether an employer can discipline employees for recreational activities conducted outside of working hours. In a landmark decision of the Fair Work Commission (FWC) issued in October 2014, the FWC has made its position clear that safety will always triumph.

The Sharp case – background

The case of Sharp v BCS Infrastructure Support Pty Ltd [2014] FWC 7310 was an unfair dismissal claim by an employee who was terminated following a positive drug test.

The employer, BCS Infrastructure Support Pty Ltd (BCS), held a contract with Qantas at Sydney Airport to maintain and service various types of equipment including baggage carousels and aerobridges, which was work that constituted “Safety Sensitive Aviation Activities” (SSAA) under the Commonwealth aviation legislation. The employee, Owen Sharp, was a team leader who had been working with BCS since 2006.

BCS was required by the Sydney Airport Corporation Limited to subject all its employees who performed SSAA to drug and alcohol testing. On attendance at work at 6am on Monday 10 February 2014, Mr Sharp was informed by his supervisor that he was required to undertake a drug and alcohol test. Mr Sharp told his supervisor that he had consumed marijuana the prior Saturday. The test was then undertaken that afternoon when Mr Sharp provided a urine sample.

On 12 February 2014 Mr Sharp was informed that he had tested positive for cannabinoids at a level of 112µg/L, which was in excess of the permitted threshold of 15µg/L. He was stood down pending the provision of a report from the Medical Review Officer, which was provided on 13 February 2014 and which confirmed the results.

On 19 February 2014 and in accordance with BCS’s Drug and Alcohol Management Plan (DAMP), Mr Sharp attended a meeting with representatives of BCS with a union official as his support person. At the meeting, Mr Sharp was provided with a copy of the confirmatory report and requested to provide a written response to the allegations, which he did on 20 February 2014. At a further meeting on 21 February 2014, Mr Sharp was informed that he was dismissed effective from that date, and he was paid four weeks’ pay in lieu of notice and his accrued leave entitlements.

Mr Sharp then applied to the FWC for relief from unfair dismissal.

What was the case in the first instance?

The case came before Vice President Catanzariti of the FWC, who was asked to determine Mr Sharp’s application for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth).

Mr Sharp submitted the following main arguments:

He did not, and has never, knowingly used alcohol or illicit substances at work;

There was no suggestion that he was impaired by the cannabis in his system while at work;

There was no suggestion or evidence to suggest that he is a habitual drug user;

The test results themselves did not indicate that he was impaired or remained affected by cannabis;

He had never previously tested positive for any prohibited substance during his employment;

He had informed his supervisor that he could test positive prior to taking the test;

He had complied with the requirement to provide a sample;

He had been honest and contrite and never sought to deny or conceal his conduct;

Other employees who had returned positive samples were not terminated;

BCS’s policy did not advise employees that termination would result from returning a positive result, and in fact prefers alternative sanctions; and

BCS did not comply with its own DAMP in the manner in which the testing was carried out.

Mr Sharp also argued that his length of service, his work record, his willingness to transfer to another worksite, his cooperation with the investigation process, and his status as the primary breadwinner in his family should be taken into account.

BCS submitted that it had complied with its policies and its DAMP, and that:

The level of cannabinoids revealed by the test was so high that it represented a serious threat to the safety of workers;

Mr Sharp’s conduct compromised BCS’s reputation in circumstances where BCS already held serious concerns about its relationship with Qantas; and

Representations had been made by a Qantas representative to BCS that Qantas would not be comfortable with an employee who had tested positive for drugs remaining on site.

BCS also said that the high-risk nature of BCS’s workplace and the fact that Mr Sharp was a team leader responsible for other employees were also significant factors in assessing how BCS had proceeded. Lastly, BCS submitted that there was a risk of establishing a precedent with respect to testing positive for illegal substances if Mr Sharp was allowed to return to the workforce.

The Vice President rejected Mr Sharp’s unfair dismissal application at first instance, finding that Mr Sharp’s positive test result for illegal drug use had the capacity to cause serious and imminent risk to the reputation, viability or profitability of BCS.

What was the case on appeal?

Mr Sharp appealed the initial finding to the Full Bench of the FWC.

Mr Sharp argued that the Vice President had erred in a number of his findings, including that procedural fairness had been afforded, that a positive test gave rise to grounds for termination, and that the positive test constituted serious misconduct.

Mr Sharp submitted that the Vice President should not have disregarded the facts that:

it was Mr Sharp’s first positive test;

he was not impaired;

he was not a habitual drug user; and

the positive result arose from out of hours conduct.

The Full Bench agreed with the decision of the Vice President that the issue was not Mr Sharp’s “out of hours” conduct in smoking cannabis on the weekend, but rather that he attended for work (which involved the performance of SSAA) with a level of cannabinoids that was above (and very significantly above) the permitted threshold.

His attendance at work while medically affected by an illegal drug was “at work” conduct.

The Full Bench found that, apart from reliance on an employee’s own explanation, an employer will not be in a position to properly assess whether an employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis may, at least in the context of safety-critical work, be lawful and reasonable.

Accordingly, in its decision handed down in February 2015, the Full Bench upheld the decision of the Vice President and refused permission to appeal.

Impaired or not impaired, is that the question?

An important finding in the Sharp decision is that the question of actual impairment is not central to a decision to terminate someone for breach of a reasonable drug and alcohol policy. Rather, the FWC’s view was that the mere existence of a positive test result provided valid reason for dismissal under the policy, especially since safety was of critical importance in the relevant workplace.

In the past, Courts have criticised the ability of urine-based drug and alcohol tests to assess impairment. This aspect did not impact the decision in Sharp because drug usage, rather than actual impairment was the behaviour the subject of the disciplinary action. The crux was not that Mr Sharp had smoked cannabis “out of hours”, but rather that he attended work above the policy threshold level.

What types of jobs and workplaces are classified as ‘safety critical’?

Workplace drug and alcohol policies are more likely to be held enforceable where safety is a critical consideration. Health care, construction and transport services (aviation, bus, rail and maritime) are examples of such industries.

In another recent decision, the Federal Court upheld the termination of employment of a ferry master who collided with a wharf while operating a ferry: Toms v Harbour City Ferries Pty Ltd [2015]. In that case, Mr Toms tested positive for cannabis despite not exhibiting any signs of impairment – he admitted to smoking marijuana the night before to relieve shoulder pain. Both the Toms and Sharp decisions highlight the need for employees to consider the safety risks inherent in their jobs when deciding what is appropriate after hours conduct.

Where a job is low risk, it remains unclear whether a breach of workplace drug policy will be sufficient grounds for dismissal alone or whether impairment will also be required. However, it is conceivable that even for low risk jobs where safety is not a critical concern, the reputational risk of the employer would remain and may justify termination.

What are the implications of the Sharp decision?

The ‘take away’ from the Sharp decision for employers in safety critical industries is that they can and should implement a comprehensive drug and alcohol policy for their employees. The Sharp decision has made it clear that a reasonable policy will be upheld by the FWC.

Employers should ensure that their drug and alcohol policy explicitly states what constitutes an acceptable level of a substance in an employee’s system while at work. In the Sharp case BCS’s policy was clear on what was an acceptable level of cannabinoids, and Mr Sharp tested for levels more than 7 times in excess of the acceptable amount.

Employers should also make sure that their drug and alcohol policy sets out the consequences of a breach of the policy, so that a uniform approach is taken in relation to all positive tests. This shows that an employer takes the matter seriously in every case, and helps strengthen the employer’s argument that reputation as well as safety is a determining factor for the employer.

The lesson for employees is that ‘party drugs’ (including illicit substances such as amphetamines, cannabis, cocaine, LSD and ecstasy) may be detectable in urine tests up to 7 days after consumption. That means that a drug is likely to still be present and detectable long after an employee has stopped feeling its effects.

Employees must be very mindful of their actions outside of work, especially if those actions have effects that continue after the start of the work week. Employees who adopt a “work hard, play hard” mentality are putting their employment at risk, long after Saturday night ends.

To put in place an effective drug and alcohol policy, call us on 1300 654 590.

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